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2017 DIGILAW 1700 (ALL)

VIJAY KUMAR v. STATE OF U. P

2017-07-20

RAJAN ROY

body2017
JUDGMENT : Rajan Roy, J. Heard. 2. Sri Deepu, the complainant who was a party in the revision has not been impleaded in the writ petition. 3. Sri Mohan Singh, learned Advocate has filed an application for impleadment. 4. Sri Mohan Singh, Advocate is given a right of hearing. The application is disposed of accordingly. 5. This is a writ petition under Article 226 of the Constitution of India challenging the orders passed by the authorities/Courts below in proceedings under section 161 of the U.P. Zamindari Abolition & Land Reforms Act 1950 (hereinafter referred as 'Act 1950') for exchange of land. 6. In nutshell, the fact is that the petitioner admittedly, albeit, allegedly unknowingly, encroached upon land which was reserved for pond i.e. land falling under section 132 of the Act 1950 and built thereupon a house in which he is residing. In view of this encroachment proceedings under section 122-B/C of the Act 1950 read with Rule 115-C were initiated against him wherein orders of eviction and damages were passed. Ultimately the matter came up before this Court by means of Writ Petition No.4355(MS) of 2014 filed by the petitioner challenging the said proceedings. During the course of proceedings apart from the question of eviction the petitioner also claimed that the land be allowed to be exchanged, which was repelled by this Court vide judgment dated 14.2.2017. The said judgment reads as under: "Heard. The petitioner herein has challenged the order passed against him under section 122(B) or (C) of the UP Zamindari Abolition and Land Reforms Act 1950, read with Rule 115-C of the Rules made thereunder by which it has been held that he is an encroacher on Gaon Sabha land, consequently an order of eviction coupled with damages to the extent of 6 lacs have been imposed. He has also challenged the Revisional order dated 23.7.2014 by which his revision against the order of eviction has been rejected by the Collector. The petitioner is in unauthorised occupancy of the land measuring 0.006 hectares i.e. 6 are, which in fact, is recorded as Talab land, plot number 74 Min. He has also challenged the Revisional order dated 23.7.2014 by which his revision against the order of eviction has been rejected by the Collector. The petitioner is in unauthorised occupancy of the land measuring 0.006 hectares i.e. 6 are, which in fact, is recorded as Talab land, plot number 74 Min. It is not in dispute that the land in question is entered in the revenue records as Pond which is a land vested in the Gaon Sabha under section 117 and also one covered under section 132, therefore, in respect of the same no Bhumidhari rights can accrue in favour of any person. In these circumstances, the part of the order dated 2.8.2014 to the effect that in case the petitioner is having any land adjacent to Plot number 74, he may give such land in exchange of plot number 74, cannot be acted upon as it would amount to making an observation or issuing a direction contrary to express provisions of the statutes as has been held by a Division Bench of this court vide its judgment dated 9.2.2015 while deciding Writ-C No. 54062 of 2013 wherein even though this issue was not strictly involved, but the issue was whether an unauthorised occupant of Gaon Sabha Land could be allowed to continue the said occupation by substituting eviction with damages, therefore, in essence, the principles enunciated therein would apply herein also at least to the aforesaid extent. The land covered under section 132, thus, cannot be part of any transaction of exchange under section 161. Now the unauthorised occupancy of the land being proved before the revenue authorities under section 122 B and 122-B(4)(a) it being a factual matter and not successfully rebutted before this court, it does not require any interference, however, as far as the imposition of damages is concerned, the court does not find any discussion in the body of the order passed either by the Sub Divisional Magistrate or by the Collector to justify such damages. The calculation of such damages is to be undertaken in terms of Rule 115-F which does not appear to have been done judiciously, therefore, to that extent the order is set aside and the matter is remanded back to the Sub-Divisional Magistrate concerned for calculating the damages afresh in accordance with the relevant rules on the subject. The calculation of such damages is to be undertaken in terms of Rule 115-F which does not appear to have been done judiciously, therefore, to that extent the order is set aside and the matter is remanded back to the Sub-Divisional Magistrate concerned for calculating the damages afresh in accordance with the relevant rules on the subject. It is made clear that the Sub Divisional Magistrate shall pass a reasoned order in this regard while fixing the damages, if any. For the reasons already discussed herein above as far as the eviction part is concerned, as exchange is not permissible under section 161 of Act 1950, as was proposed earlier, therefore, there is no other option but to dismiss the writ petition as regards the impugned orders ordering the eviction of the petitioner is concerned. As regards damages, the matter is remanded back, as aforesaid, for an expeditious decision, say within the 2 months from the date a certified copy of this order is submitted. At this stage, learned counsel for petitioner submits that under U.P. Revenue Code 2006 by which the earlier enactments have been repealed, subject of course to Section 231 of the Act, there is no such bar in exchanging the land covered under section 132 of the U.P. Z.A. & L.R. Act, subject to the conditions mentioned in 101 of the Code 2006, therefore, such exchange may be permitted. Counsel for the opposite parties opposed this claim on the ground that no division has taken place between co-sharer of the Khata concerned, therefore, by virtue of sub-Section 3 exchange would not be permissible and also that the land proposed to be offered in exchange is not immediately adjacent to pond land but there is a Kharanja between the land and the pond. Be that as it may, it is for the petitioner to approach the concerned, if permissible in law and not for this Court to enter into this controversy . Subject to the above, the writ petition is dismissed." 7. On a bare perusal of the said judgment it appears that the petitioner did not inform the Court during the course of hearing that any proceedings for exchange under section 161 of the Act 1950 were already pending at the level of the Board of Revenue wherein after the same having been declined by the S.D.M. under the said provision a revision had been filed. 8. Be that as it may, the plea of exchange was considered and declined for the reasons already mentioned in the said judgment. The judgment dated 14.2.2017 quoted herein above has not been challenged by the petitioner, therefore, it has attained finality between the parties. Moreover the Court finds that there is another judgment by a Division Bench passed in Writ Petition No.10902 (MB) of 2013 filed by one Deepu @ Deep Chandra Mishra, wherein the following order was passed on 22.11.2013: "Heard learned counsel for the petitioners and the learned Standing counsel. Controversy relates to alleged encroachment over the public utility land/pond It is well settled proposition of law that the ponds or public utility land should be maintained by the state authorities and any encroachment made thereon should be removed in accordance to law. It has been settled by Hon'ble Supreme court in the cases of Hinch Lal Tewari v. Kamla Devi and Others reported in AIR 2001 SC 3215 and Jagpal Singh and others v. State of Punjab and others reported in AIR 2011 SC 1123 that ponds and water reservoir cannot be allotted to any person whosoever may be to change its nature. In view of above, we direct the District Magistrate/Sub Divisional Magistrate concerned to look into the matter and take appropriate decision in accordance to law to remove the encroachment from the pond, if any expeditiously say within a period of six months from the date of receipt of a certified copy of this order. It is clarified that we have not entered into merit of the controversy. Subject to above, writ petition is disposed of finally." 9. Be that as it may, the orders which are impugned herein categorically decline the claim of the petitioner for exchange of land on the ground, firstly, that exchange of pond land is impermissible under section 161 of the Act 1950. Secondly, the petitioner could not offer any land adjacent to the pond for exchange, as has been held by the Revisional Court, however, it appears that the Revisional Court was not apprised of the order of this Court dated 14.2.2017 wherein this plea was raised and rejected by this Court and it was held that even if adjacent land is offered, same cannot be exchanged. Reliance was placed by this Court upon a Division Bench judgment dated 9.2.2015 rendered in Writ-C No. 54062 of 2013. Reliance was placed by this Court upon a Division Bench judgment dated 9.2.2015 rendered in Writ-C No. 54062 of 2013. In this view of the matter as the earlier proceedings between the parties have attained finality, therefore, no relief can be granted to the petitioner in these proceedings. 10. At this stage, learned counsel for the petitioner submitted that now under the U.P. Revenue Code 2006 exchange of land falling under section 132 of the Act 1950 and analogous provisions of the Revenue Code 2006, is permissible and, therefore, this be ordered, however, the Court finds that this aspect was also considered while deciding the earlier writ petition of the petitioner vide judgment dated 14.2.2017, obviously at the behest of the petitioner and it was noticed that the interest of the petitioner in the holding being still undivided, in view of sub-section (3) of Section 101 of the Revenue Code 2006 such exchange was not permissible and also as the land being offered in exchange was not immediately adjacent to the pond, but there was a kharanja between the land and the pond. 11. In view of the above, howsoever harsh it may be, the hands of the Court are tied by the earlier judgment and the provisions of law both, therefore, the writ petition is dismissed.